Musings in the life of an internist, cardiologist and cardiac electrophysiologist.

Saturday, October 04, 2008

Bloggers Beware

Dear Blog-o-sphere:

I was going to tell you about a little problem I had in June that concluded last Friday, but I have reconsidered. This has been one of the hardest things I have had to do since starting this blog, since there's nothing more that I would like to do than to go public about this and let the individual who subpoenaed me suffer a little Streisand Effect in return for the considerable legal costs I have incurred.

I can tell you I was subpoenaed for a discovery deposition about one of my posts on this blog. I was not named as a party in the suit occurring in Cook County Circuit Court here in Illinois, mind you. Rather, the plantiff thought for sure that I knew one of the anonymous commenters on my blog. I did not. They insisted that I take down the post on my blog. I have not. They asked that I remove the comments identifying individuals on my blog. I have not and will not. They wanted me to take down an image I posted on my blog. It still stands.

After three trips for my lawyers before the Cook County Cicuit Court in late summer and fall of this year at considerable expense, my motion to quash the subpoena was rendered "moot" after the suit upon which it was based was dismissed in court.

So why do I let you know this?

Because of the circumstances that took place are important for bloggers to be aware of their potential for such legal actions, not dissimilar to that suffered by Karen Seidel of Neurodiversity.com, just on the basis of anonymous commentary on your blog. The implications of this are chilling.

But I am also aware that I reside in Illinois, sometimes jokingly referred to as the "Land of Lawyers" rather than the "Land of Lincoln." Regrettably, I have no formal legal background and am therefore at a distinct disadvantage in court proceedings should the individual cry foul if I went public and drag me back to court again crying about some defamation claim. Sure, sure, my post is written and contains all kinds of documents pertaining to the suit and the other individual's prior activities, but it just ain't worth the potential hassle right now.

Rather, I'm going to let these guys handle it. I gave them all my info. Including the contents of that other blog post.

This sucks. And it could probably happen only in America. It beggars belief how litigation crazy the whole US is!!How the £℧¢₭ do they expect you to be responsible for something that some nameless idiot wrote in your publically posted blog!??

Wes, you have my comradeship and sympathy. Getting subpoenaed was a hassle for me, too, but at least it was a hassle over my own writing. Your situation doesn't seem a whole lot different from that of a restaurant owner getting hauled into court over graffiti left on the bathroom wall.

I grew up in your neck of the woods, and I understand the litigious nature of the area. I fear it will only get worse as our economy falls, but I applaud you for standing your ground and not cowering in a corner in fear.

I don't get it, really. I can't possibly be the only patient in the world that doesn't care one way or the other if a doctor were to blog about me? Say something good, bad or indifferent - so what? I'm not sure that HIPPA has done anything other than give schmucks more legal grounds on which to sue.

My hubby is an attorney as are many in my circle of friends and family. It can be so emotionally and financially draining to make sure you are well protected legally. And though it is true that the ones that make out in these litigious issues are often the lawyers, most attorneys will tell you that they despise these kind of cases. Justice is never served and the legal system gets sullied once again.

Thank you for sharing this with us all - and for standing your ground.

I'm so sorry to hear of these losers (the plaintiff AND their lawyers) hassling you like this over what is clearly (in the court of common sense) overreaching. Power and courage to you to continue holding your ground.

I've had to deal with some of this type of crap too after a crayzee figured out who I was and thought she'd try to shut my blog down by making up a whole bunch of crap that I "did" (child abuse, hate crimes, you name it, it was on there). Yawn. The investigators thought my blog was funny.

Hello, Doc! Just heard about your recent woes from a commenter over at Orac's ScienceBlogs perch.

Are you at all legally liable for what the anonymous commenters wrote? Probably not, as Section 230 (c) (1) of the 1996 Communications Decency Act states as follows: "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."

In the MySpace and Wikimedia cases, the immunity provision of Section 230 was found to protect the website owners in question. The Roommates.com case turned out somewhat differently: The Ninth Circuit ruled that an exception to the immunity provided by Section 230 would exist if the website "contributes materially to the alleged illegality of the conduct” of the persons visiting a website; however, the Ninth Circuit made it quite clear that this exception was not to be used as a license to harass website owners:

[T]here will always be close cases where a clever lawyer could argue that something the website operator did encouraged the illegality. Such close cases, we believe, must be resolved in favor of immunity, lest we cut the heart out of section 230 by forcing websites to face death by ten thousand duck-bites, fighting off claims that they promoted or encouraged—or at least tacitly assented to—the illegality of third parties . . .. [I]n cases of enhancement by implication or development by inference—such as with respect to the “Additional Comments” here—section 230 must be interpreted to protect websites not merely from ultimate liability, but from having to fight costly and protracted legal battles.

In other words: SLAPPers, you'd better think twice before trying to add the Ninth Circuit's decision to your legal arsenal.

I described the one civil issue in this blog, but there are more complicated issues that I am not at liberty to discuss at this time. I am quite sure that I have selected the appropriate reporting agency(ies).

Hi there. I regret that I'm posting anonymously. I wanted to show my support but also not bring the flamer to a medical blog with which I'm associated.

I was very recently threatened with a lawsuit (no grounds; the person was crazy), not for medical reasons or even blog reasons, but for posting in an online group that I thought this person was spamming and being misleading. After the person was put on moderation, he e-mailed me personally and harassed me, calling me an "animal," among other things. He also made it clear that he had found the state where I live.

Additionally, he threatened another group member with a lawsuit.

So these people seem to be everywhere. I'm glad you're posting about your experiences because it helps me understand I'm not alone. Whatever you decide, please know you're not alone, either.

I may be stating the obvious here, but I think the Electronic Frontier Foundation (EFF.org) would be worth looking into for additional support/representation. You mentioned there were more complex issues (to wit, the FBI was involved) but I thought I'd throw that out there b/c you shouldn't be compelled/coerced to prove you don't know something in this manner. I hope there's some financial remedy here (not punitive, necessarily, just recovery) if you can stomach more legal proceedings.

Best of luck in your legal efforts, and please don't let this stop your blogging -- as I said on the other post, this is so outrageous I can't believe it not to be a one-time event. I sure pray that it is.

Girlvet, you're right, some of us who post anonymously are not bloggers. And some of us have been flamed and spammed simply because someone took a dislike to our screen name or our ISP. It's NOT fun when that happens, that's why I don't sign my name.

Dr. Wes, I hope the jackass who's been causing you problems is caught and prosecuted. (Persecution would be nice, too.) Hang in there, doc, we're on your side!

Historically, information sources provided to American citizens were limited due to the few methods available to the public, such as radio, TV, or news print. And also this information was subject to being filtered and, in some cases, delayed. This occurred for a number of reasons, which included political ones.Now, and with arguably great elation, there is the internet, which can be rather beneficial for the average citizen.Soon after the advent of the internet well over a decade ago, web logs were created, that are now termed ‘blogs’. At that time the blogs were referred to as personal journals or diaries visible on line. As time passed, blogs became a media medium, and blog communities evolved into addressing topics that often were not often addressed in mainstream media, as they crossed previously existing political and social lines. In addition, blogs provide immediate contributions by others, the readers of the posts of the blog authors, instead of the cumbersomeness of opinion and editorial pieces historically and not always presented in such media forms as newspapers or magazines. The authors of blogs vary as far as their backgrounds and intent of what they choose to address on their blogs exactly, just as with other media forms. Some are employed by the very media sources that existed before them. Furthermore, they are not exonerated from the legalities of what is written, such as cases of libel. While we can presume that bloggers like to write, they may not be quality writers, yet several are in fact journalists, as well as doctors and lawyers, for example. But to write is to think, which I believe is a good quality one should have.Yet presently, blogs have become quite a driving force for those with objectives and issues often opposed by others, and therefore have become a serious threat to others. These others may be politicians, our government, or corporations- all of which have been known to monitor the content of certain blogs of concern to them for their potential to negatively affect their image or their activities previously undisclosed. This is why blogs, on occasion, have become a media medium for whistleblowers, which will be addressed further in a moment.While one disadvantage of blogs is the potential lack of reliability, blogs however do allow in addition to the comments of its readers the posting of authentic internal or confidential documents that typically are not created to be viewed by the public, yet are acquired by certain bloggers. For example, blogger Dr. Peter Rost, a whistleblower himself, not long ago posted a newsletter published by pharmaceutical company AstraZeneca on his blog site, and this newsletter was given to him by AstraZeneca's employees who called themselves the ‘AZ Group of Seven’- with the intent of this group being to bring to the attention of others the illegal activity of off-label promotion of one of AZ’s cancer drugs promoted by their employer. Yet this particular concern by AZ seven, by surprise, is not what caught the attention of so many who viewed the posted newsletter by Dr. Rost and was read with great interest by others. It was instead a comment included in this newsletter that was stated by former regional AZ manager Mike Zubalagga, who was being interviewed by a district manager in this newsletter. Mr. Zubalagga, who in this newsletter posted on Dr Rost's blog site, referred to doctors’ offices as ‘buckets of money’, which caught the attention of several readers. This and other statements by this man were in fact published in this newsletter clearly not reviewed before its publication. . Again, the statement and the newsletter created by AZ was indeed authentic and further validated due to the content being in the written word, which added credibility.Mr. Zubalagga was fired the next day due to this ‘buckets of money’ comment due to the effect it had on the image of his employer. His manager resigned soon afterwards from AZ.Blogs, one can safely conclude, reveal secrets.And there have been other whistleblower cases on various blogs in addition to this one described a moment ago, which illustrates the power of blogs as being a very powerful and threatening media medium of valid information disclosure that others cannot prevent from occurring.This, in my opinion, is true freedom of information- largely free of embellishments or selective omissions. It’s a step towards communication utopia, perhaps, yet a force that has the ability to both harm and protect many others.Yet again, the information on these blogs should not be taken as absolute truth without proof to verify claims that may be made, as with other media sources. Of course, documents that are authentic is an example of a good validation source. And this, in my opinion, is the blog’s greatest value, combined with the comments on blogs from the growing number of readers who are allowed to contribute to the subject matter so quickly, which fuels the objectives of the blogs, which may be a type of Socratic learning. Like other written statements, some on such internet sites are composed with respect of the written word. Others are not. It's the freedom that may be most appealing of this new medium which has the ability to convert citizens into journalists who want to contribute to an issue of their concern they share with the blogger often with great conviction and accuracy.Because we, the public, have a right to know what we are entitled to know and what we want to know. This is especially true if the information disclosed on blogs could potentially be adverse to our well-being. Ignorance is bliss, but knowledge is power. “Information is the seed of an idea, and only grows when it’s watered.” --- Heinz V. BergerDan Abshear

It is impressive that you have taken such a strong stand against this abusive behavior. The temptation to give in, provide information on the anonymous commenter, and take down the post must have been tremendous. Even opposing this harassment, dealing with the costs, the lost time, and the stress, you still can not put it completely behind you.

About Me

Westby G. Fisher, MD, FACC is a board certified internist, cardiologist, and cardiac electrophysiologist (doctor specializing in heart rhythm disorders) practicing at NorthShore University HealthSystem in Evanston, IL, USA and is a Clinical Associate Professor of Medicine at University of Chicago's Pritzker School of Medicine. He entered the blog-o-sphere in November, 2005.
DISCLAIMER: The opinions expressed in this blog are strictly the those of the author(s) and should not be construed as the opinion(s) or policy(ies) of NorthShore University HealthSystem, nor recommendations for your care or anyone else's. Please seek professional guidance instead.